The following opinion is presented on-line for informational use only and does not replace the official version. (Mich. Dept. of Attorney General Web Site - http://www.ag.state.mi.us)
STATE OF MICHIGAN
BILL SCHUETTE, ATTORNEY GENERAL
Local regulation of fireworks
The Michigan Fireworks Safety Act, 2011 PA 256, MCL 28.451 et seq., does not preempt a generally applicable local ordinance regulating all use of temporary vending facilities because the ordinance has only an incidental effect on the sale, display, and distribution of fireworks, and where both the Act and the ordinance can be enforced. Therefore, so long as the local ordinance does not prohibit fireworks vendors from undertaking their commercial operations in any way that other vendors may undertake their operations, the ordinance is not preempted by the Act.
Sellers of consumer grade fireworks subject to the Michigan Fireworks Safety Act, 2011 PA 256, MCL 28.451, et seq., must comply with all provisions of the 2009 edition of National Fire Protection Association 101 and the 2006 edition of National Fire Protection Association 1124, including section 22.214.171.124, to the extent the provisions do not conflict with the Act. MCL 28.455(1)(a).
Opinion No. 7266
June 12, 2012
Honorable Rick Jones
Lansing, MI 48909
You have asked several questions concerning the recently enacted Michigan Fireworks Safety Act (Act), 2011 PA 256, MCL 28.451 et seq.
Public Act 256 repealed existing fireworks statutes, and created a new law regulating the sale, purchase, possession, and use of fireworks; provided for civil and criminal penalties for violations of the Act; imposed various fees on wholesalers, distributors, and retailers; imposed a fee on the retail sale of fireworks; and established a Fireworks Safety Fund. As a general matter, the Act expanded the types of fireworks that consumers may lawfully purchase without a permit. The Act became effective January 1, 2012.
Your first two questions may be restated as asking whether a township may enforce a local ordinance generally regulating temporary vendors against a vendor proposing to sell consumer grade fireworks under the Act.
Information supplied with your request reveals that a township ordinance generally allows vendors to sell goods using tents or other temporary structures in the township but requires that they obtain a permit, allow for inspections by the township fire department, and pay a fee:
If the proposed vending activity intends to use a tent, canopy or similar shelter, vendors shall be in compliance with all applicable laws, township ordinances and regulations, including but not limited to the township fire code. The vendor may be required to obtain a permit for said tent, canopy or similar shelter and allow for an inspection by the township fire department official. Any permit fee associated with this section shall be in addition to the vending permit fee of this article 1
This is just one ordinance out of a chapter of ordinances governing the operation of vendors in the township and setting forth other time, place, and manner restrictions.
The Act requires persons proposing to sell consumer fireworks to obtain a certificate from the Department of Licensing and Regulatory Affairs by filing an application and paying an application fee. MCL 28.454(1)-(2). The Act also imposes requirements with respect to the retail locations at which fireworks may be offered for sale to consumers. MCL 28.455. The Act allows for a person to sell consumer fireworks from a permanent building or structure or a retail location that is not a permanent building or structure. MCL 28.454. 2
Specific to your question, section 7 of the Act, MCL 28.457(1), provides with respect to local ordinances that:
(1) Except as provided in this act, a local unit of government shall not enact or enforce an ordinance, code, or regulation pertaining to or in any manner regulating the sale, display, storage, transportation, or distribution of fireworks regulated under this act. [Emphasis added.]
Your question requires an examination and application of the preemption doctrine. A state statute preempts regulation by a local government unit when the statute completely occupies the regulatory field, or when the local regulation directly conflicts with the state statute. USA Cash #1, Inc v City of Saginaw, 285 Mich App 262, 267; 776 NW2d 346 (2009), citing McNeil v Charlevoix County, 275 Mich App 686, 697; 741 NW2d 27 (2007), citing Rental Prop Owners Ass'n of Kent County v Grand Rapids, 455 Mich 246, 257; 566 NW2d 514 (1997). And in People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977), the Michigan Supreme Court observed that "where the state law expressly provides that the state's authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is preempted." Id. at 323 (emphasis added). This express preemption analysis is most relevant here, in light of the Act's preemption section quoted above, MCL 28.457(1). 3
The decision in Michigan Coalition for Responsible Gun Owners v City of Ferndale, 256 Mich App 401, 409-410; 662 NW2d 864 (2003), lv den 469 Mich 880 (2003), is particularly instructive in this regard. There the Court considered whether a local ordinance restricting the carrying of firearms in city buildings was preempted by state statutes, including MCL 123.1102. That statute provides, in part:
A local unit of government shall not . . . enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state. [MCL 123.1102; emphasis added.]
The Court concluded that by this language, the "Legislature stripped local units of government of all authority to regulate firearms by ordinance or otherwise with respect to the areas enumerated in the statute, except as particularly provided in other provisions of the act . . . or state law provided otherwise." Michigan Coalition for Responsible Gun Owners, 256 Mich App at 413. The Court observed that MCL 123.1102 did not use language to the effect that it occupies the field of regulation like other statutes, "but rather expressly removes the power of local units of government to regulate in the field." Id. Thus, the "effect is to occupy the field to the exclusion of local units of government." Id. Because the local ordinance expressly regulated the transportation and possession of firearms, and was not otherwise permitted by the act or other law to do so, the Court found it preempted. Id. at 414-419.
Michigan Coalition for Responsible Gun Owners involved a statute with the same kind of broad language found in section 7(1) of Public Act 256. It establishes that a statute of this nature "expressly removes" the power of local units of government to regulate what has already been regulated by the statute. In Michigan Coalition, the statute directly regulated firearms; thus, the statute preempted a local ordinance that also directly regulated firearms. The question here thus becomes whether the Act's fireworks provisions and the local ordinance regarding tent sales both regulate the same thing in a manner that violates preemption principles.
By way of general background, townships have no inherent powers, but rather have only those limited powers conferred by the Legislature or by the State Constitution. Graham v Kochville Twp, 236 Mich App 141, 146; 599 NW2d 793 (1999), citing Hanselman v Wayne County Concealed Weapon Licensing Bd, 419 Mich 168, 187; 351 NW2d 544 (1984). The township ordinance act, MCL 41.181, is the basic enabling act granting townships the power to enact ordinances "regulating the public health, safety, and general welfare of persons and property." "The authority of municipalities to regulate hawking and peddling is predicated upon police power delegated to them." Williams v City of Rochester Hills, 243 Mich App 539, 553; 625 NW2d 64 (2000). And the Michigan Supreme Court observed over a hundred years ago that "[t]he power to regulate the business of hawking and peddling has long been recognized in this State. . . ." City of Alma v Clow, 146 Mich 443, 448; 109 NW 853 (1906), citing People v Russell, 49 Mich 617; 14 NW 568 (1883). Such "hawking and peddling" ordinances address public safety issues by regulating where and when vendors may operate within a community.
The Act specifically regulates the sale of consumer fireworks from permanent and nonpermanent locations like tents and other similar temporary facilities. In contrast, the township ordinance is a law of general applicability that regulates the use of all tents, canopies, or similar shelters used for vending activities. It does not expressly refer to the sale of fireworks or any other specific goods or services. Nevertheless, a vendor seeking to sell consumer fireworks in the township would be subject to the vendor permit and fee requirements. Thus, the township ordinance will incidentally affect the sale of regulated fireworks in the township.
But this incidental effect does not equate to regulation of "the sale, display, storage, transportation, or distribution of fireworks regulated" by the Act. See Konynenbelt v Flagstar Bank, 242 Mich App 21; 617 NW2d 706 (2000) (Federal mortgage law did not preempt state law because it was "merely incidental and ha[d] nothing to do with the lending of money.") Rather, the purpose of a general vendor ordinance like the one at issue here is to regulate the sale of goods or services to the community by temporary vendors.
Unlike the ordinance at issue in Michigan Coalition, which by its terms applied to gun carrying, an activity addressed by the state statute, the ordinance here does not by its terms apply to fireworks activity in any manner. Instead it sets forth a scheme applicable to any vendor of goods, which scheme happens to also apply to fireworks vendors. In that sense, the ordinance does not regulate the sale, display or distribution "of fireworks" as prohibited by the Act.
To reiterate the difference between the question addressed here and that at issue in Michigan Coalition, the statute and the local ordinance do not address the same matter here (fireworks) while they did address the same matter (firearms) in Michigan Coalition. The Michigan Coalition result, finding the statute to preempt local firearms ordinances, remains good law; it is simply inapplicable here where the general local vending ordinance has nothing but an incidental effect on the fireworks sales covered by the statute.
Thus, the township ordinance does not regulate the sale of consumer fireworks and it does not run afoul of the Act on that basis. Had the Legislature intended to prohibit a local unit of government from enforcing or enacting any peddling or temporary structure ordinances, or other generally applicable zoning, health, fraud, and public safety ordinances against fireworks vendors, it could easily have done so.
The next question is whether the ordinance is in direct conflict with the Act. Under Michigan law, it is well established that a local ordinance that regulates in an area also regulated by a state statute is not necessarily invalid. USA Cash, 285 Mich App at 267; Walsh v River Rouge, 385 Mich 623, 635-636; 189 NW2d 318 (1971). Instead, the local ordinance must yield to the state statute only if it prohibits what the statute permits or permits what the statute prohibits; in those situations, the ordinance and the statute conflict in the sense that both cannot be enforced. See USA Cash, 285 Mich App at 268, citing Rental Prop Owners Ass'n of Kent County, 455 Mich at 262. If the local ordinance and statute, however, can both be enforced there is no conflict and the ordinance is not preempted. Walsh, 385 Mich at 636, quoting National Amusement Co v Johnson, 270 Mich 613, 616; 259 NW 342 (1935).
Here, the ordinance allows vendors the use of temporary facilities for the sale of goods, including fireworks, as allowed by the Act. Its requirements regarding a permit, inspection, and payment of a fee before vendors may sell out of a temporary facility do not run afoul of the Act. Further, these local requirements are in addition to the requirements found in the Act since the ordinance requires that the vendor be "in compliance with all applicable laws." Thus, the terms of the ordinance and the Act may each be fully implemented.
It is my opinion, therefore, that the Michigan Fireworks Safety Act, 2011 PA 256, MCL 28.451 et seq., does not preempt a generally applicable local ordinance regulating all use of temporary vending facilities because the ordinance has only an incidental effect on the sale, display, and distribution of fireworks, and where both the Act and the ordinance can be enforced. Therefore, so long as the local ordinance does not prohibit fireworks vendors from undertaking their commercial operations in any way that other vendors may undertake their operations, the ordinance is not preempted by the Act.
Your third and fourth questions involve the Act's incorporation of national fireworks standards. Thus, as an initial matter, it is helpful to review the following additional requirements imposed by the Act.
Under the Act, fireworks may only be sold to consumers from retail locations. MCL 28.455(1). And those retail locations must follow certain requirements. Section 5 of the Act, MCL 28.455, incorporates two specific standards, which are conditions that must be met by sellers:
The term NFPA "means the national fire protection association headquartered at 1 Batterymarch Park, Quincy, Massachusetts." MCL 28.452(m). The Act further provides that:
Under the Act, the Department of Licensing and Regulatory Affairs (Department) is charged with promulgating administrative rules "to administer this act," which rules "shall conform to the following codes . . . NFPA 1124, code for manufacture, transportation, storage, and retail sales of fireworks and pyrotechnic articles," to the extent it does not conflict with the Act. MCL 28.470(2)(b) (emphasis added).
Your third and fourth questions may be restated as asking what requirements of NFPA 101 and 1124 apply under the Act, and specifically whether a seller of consumer grade fireworks must follow section 126.96.36.199. of NFPA 1124.
The Legislature may adopt by reference federal rules, regulations, or national standards. See Jager v Rostagno Trucking Co, Inc, 272 Mich App 419, 423; 728 NW2d 467 (2006), lv denied, 477 Mich 1108 (2007) ("When the Legislature adopts or incorporates by reference a provision of an existing [federal] statute, regulation, or rule, the separate provision that is adopted or incorporated becomes part of the legislative enactment as it existed at the time of the legislation . . . ."). This is often done where the Legislature seeks consistency, uniformity, or expertise in the area subject to regulation. In keeping with these principles, the Legislature adopted specific portions of the NFPA. Likewise, in addition to the Department's statutory mandate, administrative agencies like the Department may adopt by reference national standards like the NFPA. See MCL 24.232(4).
Pursuant to this authority, the Department promulgated a set of emergency rules in March 2012. The Fireworks Safety Act Emergency Rules address the issue of compliance with NFPA 1124. Bureau of Fire Services, Emergency Rule 3(1), indicates that "[r]etailers, wholesalers, and manufacturers shall be subject to the following codes and standards that are adopted by reference in these rules . . . NFPA 101 (2009 edition) . . . NFPA 1124 (2006 edition) . . . ." 2012 MR 5, R 3(1), p 13 (emphasis added). Further, Emergency Rule 9 indicates that the sale of consumer fireworks is not allowed until the Bureau of Fire Safety verifies compliance with NFPA 1124. Verification can be accomplished via a site inspection or the submission of a notarized affidavit "stating that the certified retail location will be in compliance with . . . NFPA 1124." 2012 MR 5, R 9(3)(b), pp 14-15.
Based on the plain language of the Act and the administrative rules, the Legislature and the Department adopted the NFPA 101 (2009 edition) and the NFPA 1124 (2006 edition) Codes in their entirety. In other words, sellers of consumer grade fireworks must comply with all provisions of the NFPA 101 and the NFPA 1124 Codes since neither the Legislature nor the Department exempted any specific part of either Code from compliance requirements. This would include section 188.8.131.52 of the NFPA 1124, which regulates the display of consumer fireworks in stores. While provisions of either NFPA Code that conflict with the Act would not apply, MCL 28.455(1)(a), the Department has not, to date, identified any conflicting provisions. Moreover, your questions do not identify any conflict and, in any event, considering the newness of the Act and the complexity of the subject matter, questions about conflicts are best left to the Department's Bureau of Fire Services, the agency charged with implementing the Act, based on its administrative experience and expertise.
It is my opinion, therefore, that sellers of consumer-grade fireworks subject to the Michigan Fireworks Safety Act, 2011 PA 256, MCL 28.451, et seq., must comply with all provisions of the 2009 edition of National Fire Protection Association 101 and the 2006 edition of National Fire Protection Association 1124, including section 184.108.40.206, to the extent the provisions do not conflict with the Act. MCL 28.455(1)(a).
1 The township ordinances define "vending" to mean:
[T]he act of offering merchandise for sale from a fixed place not within a building, from a vehicle or from a fixed place in a tent, canopy or similar shelter, not including merchants offering merchandise for sale upon commercial premises permanently occupied by them; and the act of offering merchandise for immediate sale, or for sale by sample, description or otherwise for delivery or sale at a future time, by going from door to door, house to house, person to person, or car to car; not including the act of offering merchandise for wholesale to retailers or for resale to manufacturers for use in their processes; also not including regular route delivery persons delivering products.
2 The Emergency Rules promulgated under the Act, effective March 9, 2012, define "temporary facilities" as:
[A] building or structure not meeting the definition for a Permanent Building or Structure, at which consumer and low-impact fireworks are sold, including the following:
3 In light of the following discussion of express and conflict preemption principles, it is unnecessary to address whether the Act completely occupies the regulatory field.